On appeal from a final decision of the Board of Review, New Jersey Department of Labor and Industry.
Long, Gruccio and Landau. The opinion of the court was delivered by Landau, J.A.D.
[241 NJSuper Page 217] Carolina Brambila and Mario Brambila (claimants) appeal from a final decision of the Board of Review, State of New Jersey Department of Labor (Board) which denied their claims for unemployment benefits. In so ruling, the Board reversed the Appeal Tribunal which had overruled an initial determination of claim invalidity by the local unemployment office deputy. The initial determination was made by checking a box opposite the following explanation: "Wages earned by an individual not authorized to work by the Immigration and Naturalization Service may not be used to establish a valid claim for benefits."
Carolina Brambila entered the United States illegally in 1973. She performed agricultural work on a sporadic basis from May 1, 1985 through late 1987. On November 29, 1987 she filed a claim for unemployment benefits. She filed an application for temporary resident status as a Special Agricultural Worker (SAW) with the Immigration and Naturalization Service (INS) on January 26, 1988 and received an employment authorization card on January 29, 1988.
Mario Brambila, a relative of Carolina's,*fn1 entered the United States in June 1985 as an illegal alien. He performed sporadic agricultural work from June 1985 through late 1987. Mario filed an application with the INS for SAW status and received his employment authorization card on October 23, 1987. He filed a claim on January 3, 1988 seeking unemployment benefits.
The Board denied claimants' applications for unemployment benefits based upon interpretation of federal and state statutes and case law. The applicable New Jersey statute, N.J.S.A. 43:21-4(i)(1), reads as follows:
Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time the services were performed and was lawfully present for the purpose of performing the services or otherwise was permanently residing in the United States under color of law at the time the services were performed (including an alien who is lawfully present in the United States as a result of the application of the provision of section 203(a)(7) or section 212(d)(5) of the Immigration and Nationality Act); provided that any modifications of the provisions of section 3304(a)(14) of the federal Unemployment Tax Act, as provided by Public Law 94-566, which specify other conditions or other effective dates than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under State law as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act, shall be deemed applicable under the provisions of this section. (Footnotes omitted).
As noted by the Board under this statute, "the eligibility of an alien to receive benefits is directly dependent upon whether the
alien is entitled to benefits under the Federal Unemployment Tax Act (FUTA)."
For a state to receive federal tax credits and grants, the state's unemployment benefit program must comply with standards set forth in FUTA. Ibarra v. Texas Employment Comm'n, 823 F.2d 873, 874 (5th Cir.1987). As explained in Ibarra:
Unemployed workers receive compensation through a cooperative federal-state scheme. Wimberly v. Labor & Indus. Relations Comm'n, 479 U.S. 511, 107 S. Ct. 821, 824, 93 L. Ed. 2d 909 (1987). The Federal Unemployment Tax Act (FUTA), 26 U.S.C. §§ 3301-3311, does not mandate state participation; rather, by providing federal grants and tax credits FUTA creates incentives for states to adopt employment security programs that comply with minimum federal standards. New Hampshire Dep't of Employment Sec. v. Marshall, 616 F.2d 240, 241 (1st Cir.), cert. denied, 449 U.S. 806, 101 S. Ct. 53, 66 L. Ed. 2d 10 (1980). Through its tax the scheme derives funds used principally to defray administrative expenses. Through its incentives, the scheme makes it advantageous for states to impose taxes which create funds for compensation payments to employees.
Id. The Board placed great significance on the perceived legislative intent to be consistent with FUTA. ...